te ture whenua mĀori · · 2014-07-29court hearing/order necessary to form trusts and...

TE TURE WHENUA MĀORIDEVELOPING A BILL TO RESTATE AND REFORM THE LAW RELATING TO MĀORI LAND

Shifting emphasis from compliance to enablement

Status quo Reform

Key decisions by owners require Court approval Engaged owners empowered and supported to make key

decisions without Court involvement

Court hearing/order necessary to form trusts and incorporations Governance bodies formed/appointed by registration (court order

not needed)

Court makes partition orders, amalgamation, aggregation,

easements etc.

Owners themselves partition, amalgamate, etc.

Court simply confirms due process

Limited provision for alternative dispute resolution

No provision for judicial settlement conferences

New alternative dispute resolution service, Judicial settlement

conferences, emphasis on mediation

All successions require Court hearing Most successions processed administratively

Perpetuates fragmenting of individual shareholding Provides collective ownership option

Act has the Court as its central focus Central focus of Act will be the whenua and owners

Not changing

Threshold for approving sale or gift of block remains at 75% of ownership interests

Māori Land Court remains as a key institution but with a shift in its role


Now Proposed

Māori land governance Court —• Establishes Trusts and

Incorporations• Sets terms of trust• Appoints trustees• Can conduct review

Owners —• Hold meeting• Apply to court

Owners —• Establish Rangatōpū

themselves • Decide constitution

themselves• Appoint kaitiaki

Court —• Can conduct review• Can still intervene if kaitiaki

default


Now Proposed

PartitionAmalgamation AggregationEasements

Determined by the Court Determined by the owners

Court confirms due process was followed


Now Proposed

Decision thresholds Sale or gift• 75% of all owners

Long term lease • 50% of all owners

Remove Māori land status• “Sufficient proportion” as

determined by court

Form trust• “No meritorious objection” and

trustees “broadly acceptable”

Sale or gift• 75% of all owners

Long term lease• 75% of participating owners or as

set by owners

Remove Māori land status• 75% of all owners

Form Rangatōpū• 50% of participating owners


Now Future

Selling or gifting land Needs support of 75% of owners

Court confirms due process and terms of sale

Preferred classes have right of first refusal (but no prescribed process for how the RFR works)

Needs support of 75% of ownersCourt confirms due process onlyPreferred classes —• Must be associated with land through tikanga• Include post settlement governance entities

Sales —• To preferred class directly or by closed tender• On open market at/over reserve if tender fails

Gifts —• To preferred class only


Now Proposed

Dispute resolution Māori land disputes —• Court adjudication only option

Mediation —• Court managed mediation only

for representation, fisheries/aquaculture issues

No legislative authority for judicial settlement conferences

Māori land disputes —• Independent tikanga based

dispute resolution service / mediation

• Mātauranga takawaenga• Only reaches Court if not

resolved

Legislative authority for judicial settlement conferences


Now Proposed

Succession All successions require a Court hearing/order

Succession with Will to narrow preferred class

Succession without Will to whānau members individually

Most successions won’t need a Court hearing/order

Succession by Will to wider preferred class

Succession without Will to whānau as a group


Now Proposed

Kaiāwhina Agents —• Appointed when needed to

receive notices, negotiate entry for public works etc. (Court).

Kaiāwhina —• Appointed when needed to

receive notices, negotiate entry for public works etc. (Court)

• Limited appointments to manage land pending owner engagement (chief executive)


Now Proposed

Collective ownershipAddressing fragmentation

Collective ownership of blocks —• Court can establish whenua tōpū

trusts for benefit of group -underlying ownership stays

Collective ownership of shares• Court can establish whānau

trusts

Collective ownership of blocks —• Owners can establish Rangatōpū

for benefit of group – underlying ownership stays

• Option for collective ownership (without individual shares) – 75% threshold

Collective ownership of shares —• Owners can establish whānau

trusts

2012: Review panel appointedMatanuku Mahuika, Dion Tuuta, Toko Kapea, Patsy Reddy

2013: Discussion document and consultation

2014: Final report released by government in April

Key findingsDecisions made by participating owners without needing court approval, retention protections, clear governance and accountability framework ,

utilisation by managers, mediation, discourage fragmentation

Panel’s recommendations accepted

Te Ture Whenua Māori Act 1993 to be replaced by new legislation based on the panel’s findings

Technical team to develop new billJohn Grant, Matanuku Mahuika, John Stevens, Linda Te Aho

Purpose of new legislationEmpower and assist owners of Māori land to retain their land

for what they determine is its optimum utilisation

Optimum utilisation could be economic, environmental, cultural or other

Principles of new legislationTikanga Māori guides matters involving Māori land

Māori land endures as taonga tuku iho by virtue of whakapapa

Owners of Māori land have a right to develop their land and take advantage of opportunities to develop their land

Māori customary landShould stay under collective customary ownership - no more individualisation

Should only be converted to Māori freehold land if and when owners decide

Should not be deemed Crown land for any purpose

Could be represented by kaiāwhina

Māori freehold landRestrictions on disposal should be kept – 75% threshold, preferred classes

Option to convert to collective ownership

General land no longer needed as a status of land

Decisions by ownersGenerally, owners should be able to follow their own decision processes

Prescribed process for major decisions – e.g. sale, removal of Māori land status

Thresholds 75% of all owners to sell, gift, remove status, adopt collective ownership option

75% of participating owners to partition, amalgamate , aggregate, grant long term lease, approve or amend governance document

Everything else a simple majority or as set by owners in governance document

Governance bodiesThe framework for governance bodies should, as far as possible, avoid complexity and:

• enable owners to easily appoint governance bodies with compliance measures limited to only those things essential to ensure the process is fair and transparent;

• provide an option for owners to form their own legal entity and design its constitution to reflect their aspirations and their culture;

• enable existing trusts and incorporations to transition as simply as possible to the new regime without disrupting their ongoing operations;

• provide a clear, straightforward legal framework within which to operate and which protects the interests of owners when things go wrong.

Governance bodiesOwner appointed without needing court order

OptionsRangatōpū

Post-settlement governance entityMāori Trust Board, Māori Trustee, Public Trustee, trustee company

RangatōpūBody corporate formed by registration

minimum of three kaitiaki, majority resident in NZ

Existing trusts and incorporations become rangatōpū

Existing trusts and incorporationsAhu whenua trusts, whenua tōpū trusts and Māori incorporations become rangatōpū

Transition period of three years

Transition stepsApply for provisional registrationReview trust order or constitution

Apply for full registration

Court may issue directions and make orders if no transition steps taken

After full registrationAll rangatōpū have body corporate status

Trustees /committee members referred to as kaitiaki – must be eligible, rotational appointmentConstitution governs operating processes

KaitiakiOwner appointed trustees, directors, committee members

of governance bodies

Rotation and eligibility requirements

KaiāwhinaCourt appointed agents to represent owners for specific purposes

Contracted managers in suitable cases pending owner engagement

Court appointed managers when governance body wound up

Addressing fragmentationCollective ownership option for Blocks

Owners able to agree to change from individual shares to collective ownership

75% majority needed to make the change

No sale or gifting of collectively owned land

Addressing fragmentationCollective ownership of shares

Whānau trust option to continue

Shares to pass to whānau collectively when owner dies without a Will

Mātauranga takawaengaDispute Resolution Service

Assist parties to resolve disputes concerning Māori land quickly, effectively and in accordance with principle of mātauranga takawaenga

Mātauranga takawaenga – process to help people or groups resolve disagreements and conflicts in accordance with the tikanga, values and kawa of the hapū

associated with the land both as to process and substance

Service can be accessed directly or by referral from court

Most disputed matters must go through dispute resolution before they can be considered by the court

Whānau trustsRetained

Created without needing a court order

Beneficiaries can go on a register, entitled to grants, entitled to participate in meetings

Kai tiaki trusts Retained

Would still need a court order

Succession by WillOnly to members of preferred class or to whānau trust

Preferred class expanded to include Rangatōpū and PSGEsNo need to go to court if probate granted

Confirmation by courtSales and gifts of Māori freehold land

Collective ownership option

Partition, amalgamation etc.Decisions to be made by owners not the court

Court to confirm due process and allocation agreements

Landlocked landCourt able to grant reasonable access, dispute resolution process

Kaiāwhina may be appointed

Next steps

Ongoing work to develop a Bill

Ongoing engagement – Iwi chairs group, FOMA, Māori Trustee

Final draft of Bill by the end of this year

Key Issues for Iwi Chairs1. Iwi Chairs will support legislation, policy and resourcing that

provides better outcomes for Maori land owners.

2. Iwi Chairs focus is on:1. empowerment of Maori land owners – particular owners of multiply owned

lands that have absent owners and are either underutilised or underperforming; and

2. Supporting Maori land owners to achieve industry benchmarks for productivity on their lands (for the industry chosen by the land owners); and

3. Supporting proactive trust and incorporations increasing their productivity.

3. Iwi Chairs seek confirmation from Maori land owners that we are on the right pathway.

Increasing Productivity of Maori Land

Ture Whenua Maori ILG, FOMA & Te Tumu Paeroa

Presentation to Attorney General/Associate Minister of Maori Affairs and Minister for Primary Industries

25 June 2014

Quick Background: 5 February 2014 (Waitangi)1. Prime Minister and Minister of Primary Industries champion 2013 MPI

report which notes:“…introducing more Maori freehold land into production include realising an additional nominal $8b in gross output … and 3600 jobs over ten years”

2. Attorney General notes that the Ture Whenua Maori Act 1993 will be repealed and Working Party recommendations incorporated into a new Act.

50 Iwi representatives in attendance agree to engage with the government on these two issues. Raniera Tau is the Iwi leader and Linda Te Aho (legislation review) and Willie Te Aho (productivity) will lead the technical team.

Iwi View on New Ture Whenua Maori

• 1800s - 1992 - Alienation

• 1993 - 2014 - Retention and Paternalism

• 2015 - - Retention and Self Determination

The change to the Ture Whenua Maori must dramatically improve the situation for Maori land owners – not merely move the paternalism from the Court to another government agency.

The improvement should be Iwi/Maori led with the government as an enabler.

Iwi, FOMA and Te Tumu Paeroa support:

1. $3b investment into under utilised and underperforming Maori land over a 3 year period as proposed by the MPI report based on detailed research identifying current performance and future potential of under utilised and under performing lands.

2. Structural change (new Ture Whenua Maori) coupled with agreed policy changes and government resourcing/investment that will provide greater self determination for Maori land owners and greater productivity from their lands.

Past Research

1. Our understanding is that there is 580,000 ha of Māori Freehold Land without any formal governance or management arrangements. We do not know the level of disengaged or absentee owners.

2. Most if not all reports on Maori Land have been at a high level and we have not had the granularity regionally to be able to estimate the current performance and future potential.

3. More in depth analysis is required to understand what the constraints and opportunities might be to optimise the land as well as assessing the optimal land use options.

2 Key Issues

1. We are seeking resourcing for detailed collaborative research into:1. Maori land that has multiple owners (absentee) and no governance entity;2. Maori land that MAF/MPI identified as either unproductive or under-

utilised;1. Best use as bench marked against industry (sheep and beef; dairy; horticulture etc).

2. We are wanting assurance that there will be resourcing to transition Maori Land Owners from the 1993 Act to the new Act.1. Establishing governance entities (including drafting); governance training;

new compliance costs (reporting, registration etc); customary dispute resolution mechanisms; education around dispute resolution etc.

Next Steps

1. Agreement to the continuing collaborative approach between Iwi and Crown on Ture Whenua Maori Act and related policy and resourcing matters.

2. Formation of a technical team made up of Iwi, FOMA, Te Tumu Paeroa, MPI, Treasury and TPK to focus on:1. Completing detailed research by ICF November 2014;2. Regional engagement with Maori land owners – Nov/December 2014;3. Key joint recommendations to be considered by Ministers and Iwi Chairs at

ICF February 2015 (Waitangi);4. Policy and resourcing development being carried out parallel with new Ture

Whenua Maori Act – March 2015 to new Act coming in to force.5. Agreed policy and resourcing by ICF May 2015.

Iwi Resolution for Support

• That the participants at this Ture Whenua Maori Engagement Hui support the Ture Whenua Maori Iwi Leadership Group, their engagement with the Crown on legislation, policy and resourcing and their next steps for increasing the productivity on Maori land.

• Moved:

• Seconded:

• Abstentions:

• Against:

te ture whenua mĀori · · 2014-07-29court hearing/order necessary to form trusts and...

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