Comment: Māori land development does not depend on court reform

Miharo Armstrong

COMMENT

John Harbord in A case for reform of Te Ture Whenua Māori Act repeats the misinformed commentary of the panel that was established to review the act.

The Ministry for Primary Industries report, for example, which asserts 40% of Māori land is under-performing and 40% is under-utilised, is incorrect in significant aspects. No in-depth analysis was undertaken but rather a broad brush and incomplete sample of land use was considered.

Mäori land administrators and their advisers know the report’s assertions are flawed. In Rotorua, Taupō, Whakatane, Gisborne, Hastings, Whanganui and New Plymouth, significant trusts and incorporations holding assets valued in hundreds of millions continue to perform well. The act has not prevented them from functioning successfully in a competitive environment.

Mr Harbord then says the majority of engaged owners should make decisions without the court’s involvement. Anyone with experience of Māori land will know that it is the owners who attend meetings who decide whether to create trusts or incorporations, or lease the land or enter into joint ventures – not disengaged owners or the court.

Unengaged owners are not the problem. They do not impact on the decision making of the “engaged” owners. It would be difficult to produce evidence of any proposal by owners to create a trust or incorporation that has been declined by the court in the past decade.

The court facilitates development of Māori land by encouraging the creation of management structures through its advisory services or the appointment of agents such as the Māori Trustee to effectively retain, manage and utilise the land for the benefit of the owners.

It is not the court, the act or fragmentation that impedes the development of Māori land. The two most significant challenges are the lack of access to development finance and the lack of availability of quality governors with experience in business to develop Māori land.

High-profile cases of mismanagement
The raft of recent high publicity court cases involving poor management and governance from the High Court and the Court of Appeal emphasise that reality.

Mr Harbord says flexibility should be given to enable the appointment of a wider range of external managers. But individuals, Māori trust boards, incorporations, the Māori Trustee, the Public Trust or a trustee company within the meaning of the Trustee Companies Act 1967 can all be appointed trustees or agents under the act.

The difficulty will be where land is simply incapable of producing sustainable income because, for example, of its topography and where land administrators are then expected to subsidise the oversight of non-income producing lands.

Mr Harbord then says that Māori owners should have access to specialists and be able to take advantage of well developed short-to-medium term leasing and share farmer practices. But they do so now. Trusts and incorporations engage professional consultants and managers regularly. The difficulty is where owners have no money to pay because the land is unproductive.

Mr Harbord suggests the law should be changed to allow owners to establish their own governance entities without court oversight, which is a right available to owners of general land. But once again they can do this now and the court endorses their requests while answering their queries on the trust instrument.

It costs $60 to create a trust in the Maori Land Court. The court also has templates terms of trust that are specifically designed for Maori land that the owners can adopt when setting up a trust. What law firm would charge that low figure to prepare a Trust Deed? And what happens when four factions of owners attempt to establish separate entities with separate nominees as trustees?

The owners usually petition the court to convene an independently organised meeting to bring all of the factions together. In this way, the court plays a facilitative and supportive role to ensure the establishment of governance entities for the productive use of the land.

Mr Harbord argues that owners should have a legislative option to transition land into collective ownership without individual shares. They have been able to do this since the act was passed. The whenua tōpu trust does not have shareholdings or succession and some hapū and iwi are now taking advantage of this entity and have transferred settlement land into whenua tōpu trusts, including the Whanganui tribes.

Court compliance costs
Much is made of court compliance costs. Trusts and incorporations are usually required to file their accounts with the registrar but apart from that have few interactions with the court that require payment. More than 90% of court users are lay litigants. The fee for access to the court is $60 or $200. Administrative related fees are $25.

Where can owners of general land go to get a court overseen trust instrument implemented, subject to the owners’ approval, or deal with succession and estate distribution or alter their titles and shareholding including partition and by gift and sale for $60? Or to have judge-led facilitation for $60 or appeal a decision in any court in New Zealand for $350 and appear without counsel? Or to have complex disputes involving tens of millions adjudicated for $200 without the ruinous setting down and daily fees of the higher courts and the costs of counsel?

Even some PSGE managers have been inquiring about having their disputes dealt with in the Mäori Land Court and not the High Court. And the latest edition of Garrow & Kelly on Trust Law comments that it is quicker and cheaper to obtain directions regarding trusts from the Mäori Land Court than the High Court.

Impediments to development
It is unrealistic to expect that reducing the role of the court in either facilitating the creation of management structures or the appointment of trustees is a panacea for under-development. If, as has been assumed, it is the court that is an impediment to development, how is it that so many successful trusts and incorporations have continued year after year to profitably develop land within the existing legislative framework?

The real impediments to the development of Māori land are the quality of governors and their access to finance. Changes such as those proposed will do little to solve these two challenges. Incremental solutions are needed that encompass wider considerations including improving the experience and quality of governance pools, rather than the big bang approach. Something needs to be done to improve unproductive land. But what is proposed, in several key respects, will be doing the wrong thing, which is worse than doing nothing.

Miharo Armstrong is a partner in Aurere Law, Rotorua, and regularly appears before the Maori Land Court, and who acts for a number of Maori land trusts and incorporations


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"Access to finance...."? Whose? The well-bled taxpayer..as ever?

The Maori economy is reportedly now worth approximately $37 billion -much of it taken from New Zealanders at large, with no consultation, for claims that were not only dodgy, alleged, and not proved...but shoved past under-informed and lazy MPs by well-rewarded lawyers.

The wealth of the Maori economy should be funding its own undertakings, in all areas. But the bludging goes on.

Hospitals are removing patients from waiting lists, hundreds of jobs are being lost weekly as manufacturing and small businesses fold up and the probably greediest "tribe" in the country Ngai Tahu, is at it again - negotiating with the Treaty of Negotiations Minister, the unelected Chris Finlayson, who was largely responsible, when hired by the tribe, for their getting the third and final 90s settlement that should arguable never have been granted then on the actual evidence and was later described, with reason, as a swindle.

New Zealanders are now constantly ripped off and have no say in the decision making. The Swiss must be looking at us in incredulity.

Stupid is as stupid does.

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Access to bank finance would be a start. Most are too ignorant to understand that a mortgagee sale is not an alienation. Some are slowly coming around once they educate themselves as to that fact. The largest trusts and incorporations, which are nothing to do with Treaty settlements but are lands held by Maori owners since 1865, employ thousands of people, mostly Pakeha and mixed race New Zealanders. They are involved in farming, property, tourism, viticulture, fishing, geothermal power and horticulture spending $millions on goods and services in their local communities. They also pay tax including GST, PAYE and company and they pay dividends to their shareholders. They inject significant resources into their local communities. So many banks do support these larger entities because it is good business to do so. Perhaps what you fail to understand is that Pakeha judges in the higher courts interpret laws passed by the Pakeha majority in Parliament. Pakeha politicians on both sides of the house then make deals with tribes. These deals are then endorsed by the Pakeha controlled Parliament. Pakeha people make up the vast majority of the population who continually vote in governments since the 1940s who have made these deals again and again with tribes. What's this democratic rule of law decision making process go to do with Maoris? It's all you baby, it's all you.

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So effectively Miharo, by complaining that the problem is solely due to lack of investment funding, is continuing the old song of "just give us da money, eh" regardless of the fact that he himself admits to many millions of dollars in productive land, many millions in settlements, and heavily subsidised access to legal and other services via the Maori Land Court, subsidies denied to other NZ'ers.
The culture of welfare dependency appears to spread across all levels of Maori society, including the wealthy (gravy train?) lawyers.
Jimbo

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Great analysis Miharo, also wonderful to see you post this in NBR

Our whanau, hapu and iwi can only benefit from becoming more informed of the barriers and potential of Development on Maori Land. The Office of the Auditor Generals report in developing on Maori Land also echoes the korero you have shared here.

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I have a friend whose life has been made a misery by Maori Land Court incompetence eventually overturned too late and at great cost on appeal to higher courts. The power to create endless delays and costs for landowners at the whim of remote and unaccountable troublemakers must be curtailed.

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I have friends who are Maori who had their land saved from European co-owners who tried to sell the whole block out from under the minority owners at a gross under value by the Maori Land Court. The rights of all owners must remain paramount, not simply the greedy few with no affinity or connection to anything other than their bank accounts. Still, that's how the cookie crumbles.

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As the former lead anlyst on Maori Land Development policy for the Ministry of Foresty, then MAF, and then Te Puni Kokiri, from 1996 to 2007, I can report that a sound research-based analysis of the real impediments to better use of Maori land exists, and was approved by Cabinet in 2006-7. This anlysis showed that neither access to finance, nor the wording of the Maori Land Act (Te Turi Whenua Maori Act) are serious impediments to Maori land development. The government could make a major difference at relatively small cost - around $1M pa would be sufficient to make a real difference, and would repay Maori and the Government many times over, unlike the tens of millions wasted each year on 'Maori development' programmes that benefit nobody but the entrenched Maori political and bureacratic elite. It is the Maori politicians and bureacrats who have blocked this from happening, and they know it. Half-baked comments from yet another Maori lawyer, busily sucking from the tit of Maori land assisted by the Pakeha media, aren't going to help anybody understand the real situation.

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As a trustee of Maori land, former trust board secretary and member, trustee of marae and urupa I can tell you Dr Sutton you are quite wrong. Lack of access to finance is definitely an impediment to development of Maori land. And yes I read the reports prepared in 2006-2007. They are not even half baked. More like still in the packet in the past their use by date shelf. Once again do gooding know it all failed Pakeha politicians like you trying to tell Maori owners what is good for them is the real problem. If your Labour crowd had all the answers, why didn't Commissar Clark get them enacted? Too busy robbing Maori of due process with the property rights destroying and racist foreshore legislation? Too busy kowtowing to "Middle NZ" and pretending there are no gaps to close? Believe me, the biggest tit suckers on our land are the so called farm advisers, business mentors, GIS exponents and related flim flam merchants with their get rich quick schemes that naive and incompetent trustees get sucked in by. Look at your ex Labour party pal Richard Prebble and the havoc he wreaked on Opepe Farm Trust and Ngati Turangitukua over the Mangamawhitiwhiti fiasco. It's professionals like Miharo and his ilk, our own people, who then have to be brought in to salvage the mess left by the schemes of failed politicians, and usually for very little or nothing. The real situation in what we land owners have to deal with day in day out, not what the media or people like you deceive yourself into believing.

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You mention the government could make a major difference at relatively small cost, around $1M... but you don't say what that difference is...?

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I've noticed that quite a few top level decision influencers, directors and Ministerial Officials are from Regions in Aotearoa whom on the whole have seriously limiting knowledge of Maori affairs at all levels. They continue to undermine and overlook the integrity of the Overall Constitution of Maori Manaakitanga and Kaitiakitanga, looking after all NZers who dwell here and have done over the decades/Centuries.

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Man I totally support you and all your TRANSPARENT korero I am fighting similar conditions with our land....far too much to write here...you would be quite shocked to hear what we have been through ...BUT WE WILL FIND AWAY AND NEVER GIVE IN TO CORRUPTED GOVERNMENT DEPARTMENTS

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thank you everyone, just so helpful, helps me to better understand how I feel about all this, all confirms the feelings, now I will attach words to describe why, I know why, it is because of the lies that Maori need need the act changed, the Act works for us mostly, we have managed with little or no resources...... to have our lands in Trusts, Incorporated Companies etc...... that is for some of us the first steps, for some the structures of management are and continue to be productive....little truth too much of Maori Land under performing, under utilized. Incremental upskilling for our Management if and where needed. And we need Money, so where shall we get it from. We could set up our own company, to fund our selves.
Keep going...

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