Cross-Examination: Understanding the Opposition to the Te Ture Whenua Maori Bill

Content Contributor, Meg Williams

In 1993, a piece of legislation was passed in order to reform the laws relating to Māori land – its purpose was to reaffirm Te Tiriti ō Waitangi and to acknowledge the different nature of Māori relationship to whenua. That piece of legislation is Te Ture Whenua Māori Act 1993, and it purported to promote two principles: 1) the ever-so-important principle of retention of Māori land; and 2) the principle of utilisation of land. The first principle has since been held in high regard; fears of alienation of more Māori land are still prominent within Māori communities. It has manifested itself as a variety of protective mechanisms such as requiring that dealings regarding Māori land go through the Māori Land Court, including the selling or gifting of Māori land. The second principle, however, has arguably not been given the same status of importance and attention. Historically, there have been many barriers preventing Māori from being able to use their whenua in the way that they wish.

It is because of this apparent neglect of the utilisation principle that the Māori Affairs Committee is now considering major reform to the Act, following the first reading of the new Te Ture Whenua Māori Bill. On the 11th of May this year, Te Ururoa Flavell, co-leader of the Māori Party and Minister for Māori Development, introduced the new bill which will (rather than simply amend the current Act) replace the current Act. Flavell views the current Act as being “inconsistent in how it treats the retention and utilisation of Māori land. Retention had a clear focus with detailed provisions about alienation. The utilisation provisions, however, are unclear and ambiguous”.[1] Detailed mechanisms for protecting Māori land are arguably the majority of Te Ture Whenua Māori Act, whereas it is not very clear which provisions are allocated to address the utilisation principle and in what ways they are supposed to have practical effects for said principle.

To those who would not necessarily be affected by the passing of the Bill, it may sound like a fine idea. However, it has been met with a reasonable amount of opposition from the other side of the House, with the Labour Party, Green Party, and New Zealand First bringing to the attention of the Executive the potential dangers of such change to the piece of legislation. The opposition’s argument was that the Bill needs much more attention and analysis before it is pushed through Parliament, while Marama Fox of the Māori Party was of the opinion that opposition to the Bill coming from the other side of the House was simply them playing a game of politics. However, there have been additional critiques expressed with regards to one of the more dramatic changes that comes within the Bill.

Perhaps the biggest change to the current Act is to the role of the Māori Land Court. The Court will apparently retain the discretion to critique decisions that might affect ownership interests, but “it would have less of a role in ‘decisions that reflect the land owners exercising autonomy/ rangatiratanga. In those instances, which include decisions relating to governance agreements and asset management plans, the court’s power of review would be confined to procedural grounds”.[2] This change stemmed from the Crown’s view that the Māori Land Court has often played a rather paternalistic role, to the detriment of the parties involved in disputes. Naturally, the new Bill is looking to relax the protective mechanisms of the Court. It is this change in the role of the Court that has caused some concern among Māori, with a relaxation of protection mechanisms possibly having long term effects that are not immediately obvious. University of Auckland Law lecturer, Andrew Erueti, says that “currently there’s an emphasis on retention in the 93 Act, but the new legislation looks like it’s going to remove a lot of those constraints, so that’ll be easier to alienate… With the new bill it looks like it would be easier to change the status of land from Māori land to general land, so… it’s important to keep a close eye on this new legislation because of its long-term effects. It has broader implications than appear to meet the eye”.[3]

Greens MP Marama Davidson has seen Māori express concern about the Bill, with a particular concern about the changing role of the Court: “That is one of the key dissents that Māori people are concerned about. They do not want this current bill to be able to allow our sovereignty over our land to be put in jeopardy by this bill. People are feeling fearful about the relaxation of the protections because we want to make sure that it doesn’t make it easier for interests that are outside of that hapū or whānau to be able to play a major control role in the land”.[4] However, Davidson agrees that more needs to be done to allow Māori to be able to use their land in the way that they wish, and does not deny that there are barriers currently set in place preventing Māori from being able to do so. She agrees that “we need to find a way for Māori to maintain authority and develop our land to use in sustainable industries, or just for upholding our guardianship of our whenua regardless of what it is we do with it”.[5]^_ Davidson is not convinced that the new Te Ture Whenua Māori Bill does this. The main barrier, she says, is the lack of funding in the current system for Māori to use to design and organise their land and/or business in the way that they want to. According to Davidson, this new Bill does not properly address this concern, and it has even been estimated that the funding provided in the Bill amounts to merely “a packet of corn seeds for each hectare or so”.[6]

Davidson also identified other barriers to utilisation of Māori land. “There’s also training and education needs for our people to be the ones working and building industry, so it’s not just capacity, it’s not just investment, it’s also… build[ing] the knowledge and the skills that we need to then run and design and organise our own industry so that we really are in control”.[7] Again, the current Bill as it stands does not address these errors.

Public submissions for the Bill closed earlier this year, following its passing through the first reading on the 11th of May. It is currently under review by the Māori Affairs Committee, and the public should expect to see the report from the select committee in November. In the meantime, while the Bill has passed through the first reading and has the numbers in Parliament to be passed through the next few, Marama Davidson remains unconvinced that the Bill is being driven by those who would be affected by it: “Māori need to be driving this bill, and I’m not convinced that they are. I’m not convinced that they’re the only people driving this piece of law… We really need Māori to be fully on board and broadly supporting this bill. The whole point is that it’s Ture Whenua Māori, it’s Māori-focussed land, it’s Māori-focussed law, Māori need to be widely and deeply supporting it”.[8]

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[1] (11 May 2016) 713 NZPD.

[2] Waiting Tribunal He Kura Whenua Ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016).

[3] Interview with Andrew Erueti, University Lecturer (the author, Auckland, 12 May 2016).

[4] Interview with Marama Davidson, Member of Parliament (the author, Auckland, 22 June 2016).

[5] Above at [4].

[6] Above at [1].

[7] Above at [4].

[8] Above at [4].